Improving Accountability in 2018
THE HON MARK DREYFUS QC MP
Shadow Minister for National Security
Member for Isaacs
Improving Accountability in 2018
Alfred Deakin Oration
20 November 2018
I acknowledge the traditional owners of the land on which we meet, and pay my respects to their elders, past and present.
Thank you to Deakin University for inviting me to deliver the Alfred Deakin Oration. In particular, I would like to thank the Vice-Chancellor, Professor Jane den Hollander, and Professor Fethi Mansouri.
In January of this year, Labor announced that – if elected – a Shorten Labor Government would introduce legislation to establish a national integrity commission within the first 12 months of taking office. I am happy to restate that commitment now.
In my remarks this evening, I will address the following three questions:
- Why does Australia need a national integrity commission?
- What does such a body have to look like in order to be effective?
- Given recent media reports, is there any possibility of a national integrity commission being established prior to the next election?
But first, I would like to provide some context.
The Australian Labor Party stands for integrity, accountability and transparency in government. We do not tolerate corruption, whether in government, in business or in not for profits such as unions and charities. In keeping with this guiding principle we in Labor are committed to fostering a culture of integrity at the federal level.
The last time we were in government at a federal level, Labor clearly demonstrated how serious we are about tackling corruption. We did this by supporting significant improvements to Commonwealth integrity policies to make it easier to prevent, detect and respond to corruption. In 2013, Labor signed Australia up to the Open Government Partnership, an international program launched in 2011 that provides a framework for national governments to make their public sector more open, accountable, and responsive to citizens and civil society. As Attorney-General, I introduced the Public Interest Disclosure Act, which at long last provided protections for whistleblowers in many parts of the federal public service. That legislation protects disclosures of misconduct which might otherwise breach the law, and provides legal remedies for whistleblowers if they suffer reprisals for making such disclosures.
Labor also took a National Anti-Corruption Plan to the 2013 election, a plan which, to my great and continuing disappointment, the Abbott-Turnbull-Morrison Government has taken absolutely no action to progress throughout its five years of dysfunction.
I make these comments to illustrate that Labor’s commitment to establishing a national integrity commission did not come out of nowhere. We stood for integrity, accountability and transparency in government when we were last in office – and those principles will continue to be front of mind if we are fortunate enough to be elected to government at the next federal election.
Why does Australia need a national integrity commission?
So with that context in mind, I will turn to the first of the three questions I mentioned in my introduction: Why does Australia need a national integrity commission? And particularly, why now?
In my view, a national integrity commission is now needed for three reasons:
- to enable us to better address the problem of corruption in the present;
- to reduce the likelihood of corruption becoming a major problem in the future; and
- to provide confidence and assurance to the people of Australia that there is an appropriate framework in place for dealing with corruption in the federal sphere.
In respect of the first reason, I was deeply concerned to read in January of this year that a survey of federal public servants by the Australian Public Service Commission revealed that five percent of respondents reported seeing misconduct in their workplaces.
Just as concerning were the results of another recent survey which measured the community perception of corruption at the federal level. That survey, conducted by Griffith University and Transparency International, showed that an incredible 85% of respondents believed that at least “some” federal members of parliament were corrupt, while 18% considered that most or all members were corrupt.
Let me be clear: contrary to what those figures suggest, I do not believe that corruption is widespread in Australian political life. But my colleagues and I recognise that our national institutions are not immune from corruption, and it is clear to us that the existing “multi-agency” framework for dealing with the problem of corruption does not command public confidence. And that is understandable, because the current framework is fragmented, confusing and poorly understood.
Currently, Australia’s federal anti-corruption framework includes a range of agencies with differing responsibilities and powers. These bodies include:
- The Australian Criminal Intelligence Commission, created by this Government in what I consider to be the very unwise merger of the Australian Institute of Criminology with the Australian Crime Commission. The ACIC, like the ACC before it, has many of the powers of a Royal Commission, albeit not the same public profile and resources;
- The Australian Electoral Commission, which enforces compliance with electoral and campaign finance laws. You only have to look at the situation in the United States, where the management of federal elections is left largely to state authorities, each with its own rules and many of which act in a shockingly partisan manner, to appreciate what just what an excellent job the AEC does at election times here in Australia;
- The Australian Federal Police, who are empowered to investigate offences against Federal law;
- The Australian Commission for Law Enforcement Integrity (ACLEI), which can investigate corrupt conduct in Australian Government agencies that possess law enforcement functions;
- The Commonwealth Ombudsman, who has the power to investigate the administrative actions of Federal Government agencies;
- The Auditor-General, who has the power to scrutinise public sector operations;
- The Independent Parliamentary Expenses Authority (IPEA);
- The Australian Public Service Commission (APSC); and
- Other federal regulatory bodies including ASIC, the IGIS and AUSTRAC, the latter of which had a well-publicised role in uncovering an unprecedented money laundering scandal at the Commonwealth Bank.
That’s quite a list. And quite a bit could be said about the important work of each of those bodies, and what each contributes to the integrity of our system of governance.
But what is missing from that list is a broad-based anticorruption investigation and prevention agency which commands public confidence. As the Leader of the Opposition has said,
“… people’s trust in politics and public administration depends on the confidence and assurance that corruption will be met with the full force of the law.”
One purpose of a national integrity commission is to provide that confidence and assurance to the Australian public.
That is not to say that a national integrity commission will be a complete answer to the loss of public faith in our Commonwealth institutions. Of course it isn’t. Rather, our promise to establish a national integrity commission is one part of the Australian Labor Party’s more general commitment to tackling corruption and fostering a culture of integrity at the Commonwealth level.
My colleagues and I will have more to say over the coming months about other integrity measures. But my topic this evening is the national integrity commission, so I’ll move on to explain what such a body ought to look like.
Seven design principles
One of the government’s more bizarre criticisms of Labor’s proposal for a national integrity commission is that it lacks any detail. On the contrary, we did a significant amount of work and consultation prior to announcing our policy so that we were also able to announce seven key design principles of our proposed national integrity commission.
Those seven principles were announced with our policy by Bill Shorten at the National Press Club, and have been on our website for the public to see, consider and debate for almost a year.
So, what are they?
- First, the Commission will operate as independent statutory body, with sufficient resources to ensure it is able to carry out its functions free from interference, or even the threat of interference, from the government of the day. This is a fundamental design principle, ensuring that the Commission operates with the fearless independence of a standing Royal Commission.
- Second, the Commission would be constituted by one Commissioner and two Deputy Commissioners, each of whom would serve for a single, fixed, five-year term.
- Third, the Commission will have sufficiently broad jurisdiction and freedom of action to operate as a standing Royal Commission into serious and systemic corruption by Commonwealth parliamentarians or their staff, public servants, statutory office holders, the Commonwealth judiciary and the Governor-General.
- Fourth, the Commission will be granted the investigative powers of a Royal Commission, including search and surveillance powers, the power to compel witnesses and subpoena documents and carry out its own investigations, with warrant oversight by the Federal Court.
- Fifth, while the presumption will be that hearings will be held in private, the Commission will have discretion to hold hearings in public where it determines it is in the public interest to do so. Labor will continue to consult on the appropriate threshold and possible guidelines on when hearings should be held in public.
- Sixth, the Commission will only be empowered to make findings of fact. Any findings that indicate criminal conduct has occurred would be referred to the AFP or the Commonwealth Director of Public Prosecutions.
- Seventh, and finally, a Bipartisan Joint Standing Committee of the Parliament will be established to oversee the Commission and will be empowered to require the Commission to provide information about its work. That Committee will be responsible for appointing the Commissioners. The Commission will also report to Parliament on its performance annually.
Now, while it is true that those seven design principles are not at the level of detail that would be contained in a draft bill, they provide a solid framework for further expert advice and public consultation and debate on the detailed design of a national integrity commission.
I deliberately stress the importance of public consultation and debate. I said before that one purpose of a national integrity commission is to provide confidence and assurance to the public that corruption is not tolerated in the federal public sphere and that, if it does occur, it will be detected and met with the full force of the law. I do not believe that such a purpose is likely to be achieved unless the people of Australia are properly consulted and understand what such a body will ultimately look like.
The need for full public consultation on the design of a national integrity commission is one of the reasons why we have committed to establishing that body within the first 12 months of a Shorten Labor Government, and not within the first 12 minutes. We cannot afford to rush this. It is too important: we need to get this right and getting it right means settling on a model that commands public confidence.
Where are we now?
The Abbott-Turnbull-Morrison government has so far resisted Labor’s call to establish a national integrity commission. But following the election of Kerryn Phelps in Wentworth, there is now a realistic prospect of the government changing its position. So, before concluding, I would like to make a few brief comments about the prospects of a national integrity commission being established prior to the next election.
To date, the government’s response to Labor’s proposal for a national integrity commission could fairly be described as incoherent. (The same adjective could be applied to many important policy areas about which the Morrison Government is internally divided: from energy, to climate change, to immigration, to the right of religious schools to expel students for their sexuality and gender identity, to where our embassy should be located in Israel.) On the one hand, the Attorney-General has said that he remains “open-minded” about reforms to the existing federal integrity framework, including – perhaps, maybe, possibly – the establishment of a national integrity commission. On the other hand, he has said that there is no “persuasive evidence indicating an insufficiency in the current multi-faceted approach to combating corruption”.
It was therefore surprising to learn last week that Mr Porter and the former Prime Minister, Malcolm Turnbull, had been working on their own proposal for a national integrity commission prior to the removal of Mr Turnbull as leader.
It is not known whether Mr Morrison supports such a proposal. In fact, it is still unclear whether the Attorney-General supports it. Time will tell.
But let me be very clear on this point: Labor wants there to be bipartisanship on this matter. A national integrity commission should be above politics and agreed by all parties. This is why Labor has made repeated requests for cooperation on this issue since January, and it is why Bill Shorten and I reached out again to Scott Morrison yesterday. Apart from anything else, we think that a bipartisan process would help ensure the complex consultation and design work can be completed swiftly.
So, from our perspective, a change of tune by the government on this issue would be a welcome development. But only if such a change is genuine and the government signals its commitment to establishing a national integrity commission that is fit for purpose. An integrity commission that is little more than a toothless tiger will not command public confidence and it will not be supported by Labor (or, I suspect, by the crossbench). And it will not be able to do its important job.
I have now been in the federal parliament for over a decade, and I have seen a great deal of behaviour from politicians that falls well short of community standards and expectations. A number of surveys over recent years have shown public dissatisfaction with politics and politicians are at disturbingly high levels.
To some extent, that public dissatisfaction is entirely understandable. It is particularly egregious when the public sees not only that some kind of scandal has occurred, but worse, that there are no real consequences for those who are involved. And it certainly doesn’t help that the current government has been plagued by scandal at the most senior levels.
I do not mean to suggest that misconduct is confined to any one party – of course it isn’t.
This is why we welcome the support of the cross-bench on the establishment of a national integrity commission, and why we hold out hope that the government will end its internal divisions for long enough to engage constructively with us on this important new initiative to restore trust in federal politics.